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Many people around the world believe that their emails and phone messages are being sent through satellites. They are mistaken because satellites account for less than 5%.1 Global telecommunications development began about 150 years ago with the first commercial international submarine cable, laid between Dover, England and Calais, France in 1850. In 1858, the first trans-Atlantic telegraph cable linked London with the new world, via Newfoundland.2 The 143 words transmitted in 10 hours, replaced a one-way dispatch that would have previously taken about 12 days.3

In the last 25 years, there has been a stunning growth in undersea cables because of the communications revolution triggered by the internet. Undersea cables account for 95% of the world’s international voice and data traffic (Military, Government, Emergency Response, Air Traffic Control, Subway, Rail, and Port Traffic).4 Financial markets utilize undersea cables to transfer trillions of dollars every day. In 2004 alone, nine million messages and approximately $7.4 trillion a day was traded on cables transmitting data between 208 countries.5 As a result, submarine (undersea) cables are vital infrastructure to the global economy and the world's communication system.

Douglas Burnett, a legal expert on undersea cables notes that international banking institutions process over $ 1 trillion dollars per day via undersea cables. Any disruptions of these cables would severely impact global banking. Indeed, Stephen Malphrus, Chief of Staff to Federal Reserve Chairman Ben Bernanke, recently noted, “When communication networks go down, the financial services sector does not grind to a halt, rather it snaps to a halt.6 Even though there are hundreds of cables crossing the global seabed, there are just not enough undersea communication network redundancies available to handle the vast amount of bandwidth needed to keep global banking transactions in check.

Destruction of submarine cables can cripple the world economy to include the global financial market and/or Department of Defense (DoD). An example which reflects the importance of this strategic communication capability took place on December 26, 2006, when a powerful earthquake off Southern Taiwan cut 9 cables and took 11 repair ships 49 days to restore. The earthquake affected Internet links, financial markets, banking, airline bookings and general communications in China, Hong Kong, India, Singapore, Taiwan, Japan and the Philippines.7 When a cable loses service, it has a definite, but difficult impact to the global financial sector. The International Cable Protection Committee (ICPC) legal advisor estimates that interruptions of underwater fiber optics communications systems have a financial impact excess of $1.5 million per hour.8 These estimates target operators that utilize cable bandwidth for day-to-day operations and companies or government entities that own bandwidth on the disrupted cable.9

Undersea cables are a valuable commodity in the 21st century global communication environment. The undersea consortium is owned by various international companies such as ATT, and these companies provide high-speed broadband connectivity and capacity for large geographic areas that are important entities of trade and communications around the globe.41 For example, the U.S. Clearing House Interbank Payment System processes in excess of $1 trillion a day for investment companies, securities and commodities exchange organizations, banks, and other financial institutions from more than 22 countries.42 The majority of their transactions are transmitted via undersea cables. In addition, the Department of Defense’s (DoD’s) net-centric warfare and Global Information Grid rely on the same undersea cables that service the information and economic spheres.43 If undersea cables were cut or disrupted outside of the U.S. territorial waters, even for a few hours, the capability of modern U.S warfare that encompasses battle space communications and awareness, protection, and the stability of the financial networks would be at risk. As one analyst has noted, “the increase demand is being driven primarily from data traffic that is becoming an integral part of the everyday telecommunications infrastructure and has no boundaries.44

Currently, undersea cables are protected by the following international treaties: the International Convention for Protection of Submarine Cables of 1884, the Geneva Convention of the Continental Shelf, and the Geneva Convention on the High Seas are separate but, both ratified in 1958, and the U.N. Convention on the Law of the Sea (UNCLOS) of 1982. The 1958 Geneva Convention incorporates earlier treaties regarding the laying and repair of cables on the high seas. The U.S. has signed, but not ratified UNCLOS, which entered into force in 1994 and currently has 153 nations as parties.57

At present for the United States, the operative international treaty for international cables is the 1884 International Convention for Protection of Submarine Cables. This venerable treaty was designed for old international telegraph cables. While most of its features are included in UNCLOS, UNCLOS provides real improvements required by the steady progress made in international communications in the past 122 years since the 1884 treaty entered into force. UNLCOS is essential for modern telecom business.

For example, under the 1884 treaty, nations are required to provide criminal and civil sanctions for negligent or intentional actions which cause injury to a submarine telegraph cable. Unfortunately, under this treaty, the cable owner must wait until the damage is done before sanctions are triggered. Under UNCLOS, conduct which is likely to result in injury can also be sanctioned. Under UNCLOS, a cable owner has a remedy to prevent the injury to critical infrastructure in the first place. When one considers the average $1M plus cost of a cable repair and the potential disruption a cable break can cause to vital economic and strategic interests, it is easy to see why cable owners want UNCLOS now.

The 1884 treaty is limited to telegraph cables. UNCLOS provides and expands the protections accorded telegraph cables to all international cables regardless of use.

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